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Judge orders new briefs for power line
Becky GilletteThursday, September 19, 2013

At the end of the week-long Arkansas Public Service Commission (APSC) hearing on the application by American Electric Power (AEP)/Southwestern Electric Power Company (SWEPCO) to get a Certificate of Environmental Compatibility and Public Need for a proposed 345-kilovolt power line from Shipe Road in Benton County to the Kings River, the AEP/SWEPCO attorney made a request to amend their application.

Members of the main opposition group, Save The Ozarks (STO), saw that as evidence that AEP/SWEPCO knew opponents had exposed major flaws in the application, and wanted a “do-over.” Administrative Law Judge Connie Griffin asked AEP/SWEPCO to submit a written motion to amend within 10 days.

Instead of AEP/SWEPCO filing a written motion to amend, on Sept. 11 Griffin asked all parties in the case to file legal briefs that address three issues: 1) the need for the facilities, 2) the sufficiency of the Environmental Impact Statement (EIS) in relation to Arkansas law, and 3) the sufficiency of the analysis of the projected economic or financial impact on the applicant and the local community.

“We made all three of these issues crystal clear through testimony,” said Doug Stowe, a member of the STO board of directors. “Their statement of need is to ‘increase reliability’ for a stable population and stagnant energy demand by building a power line that carries more electricity than we’re ever going to need because the Southern Power Pool (SPP, a regional transmission organization) is making them do it.”

Stowe wonders how AEP/SWEPCO can claim their EIS is sufficient when the Army Corps of Engineers and the National Parks Service have pointed out that it is deeply flawed.

“How can AEP/SWEPCO claim they’ve done an ‘analysis’ of economic impact to local communities when they simply cut and pasted that section from their EIS for a different transmission line in a different place?” Stowe asked.

AEP/SWEPCO and STO are directed to file legal briefs by Oct. 1, and briefs in reply are due by Oct. 16. All other parties for and against the proposal may file initial or reply briefs if they deem it appropriate. All parties shall file Proposed Findings of Fact and Conclusions of Law by Oct. 1.

One disappointment for STO was that their needs experts were not cross-examined during the hearing, which meant there was no oral discussion of their arguments. STO’s expert witnesses have written testimony in the record, but STO would have preferred a chance to have experts be questioned about the issues.

STO needs expert and electrical engineer, Hyde Merrill, said in pre-filed written testimony that APSC should deny the project because the supposed need for the line was to solve a problem that no longer exists. Hyde also said that neither the SPP nor AEP/SWEPCO has presented any evidence of having considered in a meaningful way any alternative to this project. He said it is not logical to conclude a solution is best if no other solution is considered. That is particularly true when the problem, as it is perceived in 2013, is so very different from the problem for which the project was approved by SPP in 2008.

Project opponent Martha Peine, who owns a home that would be 100 to 200 ft. away from one of the proposed routes, said the failure of AEP/SWEPCO attorney Dave Matthews and APSC Attorney Dawn Guthrie to cross-examine witnesses minimized the impact of STO expert witness testimony. Peine said she was also disappointed Judge Griffin didn’t question the STO expert witnesses.

Peine also has questioned how much impact public comments have on the hearing process. She said in the hearing before Judge Griffin, attorneys for proponents of the proposed project objected to the public comment of the U.S. Department of the Interior, National Park Service, dated August 20, 2013, on the grounds that it was only a public comment and not sworn testimony.

“The big utility attorneys would very much like to minimize the impact of public comments, even if the comment is from a federal agency,” Peine said. “Wow. And all along the APSC has been telling us that our public comments are taken into consideration. Which is it? Do they matter? Do they not matter? If the proponents’ attorneys think they have a chance of getting the Administrative Law Judge to discount a comment filed by the United States Department of Interior, what are the rest of us to think about our heart-felt factually supported comments?

“This is not a game where if one side can hide important pieces, the other side will lose. This is our environment and our lives. The wrong decision based on adversarial gamesmanship will irrevocably harm us all.”

Peine has also raised concerns that APSC staff might be influenced by the hopes of a higher paying job with the utility industry. Peine said there is a lucrative employment pipeline from the APSC to the energy sector that it regulates. Peine’s examples are:

Former APSC Chairman Sandra Byrd is now a vice president with Arkansas Electric Cooperative Corp.

Michael Henderson, previous employee of APSC, is now a vice president and chief financial officer with Arkansas Electric Cooperative Corp.

Former APSC Chairman Paul Suskie is a senior vice president with SPP, which also until recently employed Mike Ross, a leading candidate for governor. If elected, Ross will appoint members to the APSC.

Former APSC Commissioner Daryl Bassett is now with the non-profit EmPower Consumers Inc., a group that lobbies for putting the brakes on “green” energy solutions on the grounds it would be too expensive for the poor and elderly.